State v. Lewis

• Decision Date: 11 June 1906
• Parties: STATE v. LEWIS.
• Court: Washington Supreme Court

85 P. 668

42 Wash. 672

STATE v. LEWIS.

Supreme Court of Washington

June 11, 1906

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

George Lewis was convicted of burglary, and appeals. Affirmed.

Austin M. Wade, for appellant.

E. E Boner, for the State.

FULLERTON J.

The appellant was informed against for the crime of burglary, the charging part of the information being as follows: 'The said George Lewis, on the 8th day of December, A. D. 1905, in the county of Chehalis, in the state aforesaid, then and there being, did then and there, in the nighttime of said day, feloniously and unlawfully break and unlawfully enter the warehouse of the Northern Pacific Railway Company, a corporation doing business in the state of Washington, said warehouse then and there being a building in which goods merchandise, and valuable things were kept on deposit, and situated in the city of Montesano, in the county and state aforesaid, with the intent then and there to commit a misdemeanor or felony therein.' To this information the appellant demurred on the ground that it was not direct and certain as to the crime charged, and after trial and conviction moved in arrest of judgment on the same ground, contending that the information was fatally defective because it charged the intent with which the building was entered in the alternative.

The general rule undoubtedly is that, where a statute enumerates in the alternative several acts the doing of which constitutes a crime, or where the intent or purpose necessary to constitute the offense is set out in several aspects disjunctively, it is necessary, if the several acts or several intents or purposes are to be joined in one indictment or information, to state them conjunctively, using the copulative 'and,' where the statute uses the disjunctive 'or.' But this rule, in so far as it relates to the intent in an indictment or information for burglary, has been changed by statute in this state. Burglary, as defined by section 7104 of the Code (Ballinger's Ann. Codes & St.), consists of the unlawful entry in the nighttime, or the unlawful breaking and entry in the daytime, of any building in which goods and merchandise or valuable things are kept for use, sale, or deposit, with intent to commit a misdemeanor or felony. By section 7105, Ballinger's Ann. Codes & St., it is provided that any person who makes such unlawful entry, or breaking and entry, as defined in the preceding section shall be deemed to have made the same with intent to commit a misdemeanor or felony, unless the entry is explained by testimony satisfactory to the jury trying the case to have been made for some purpose without...